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National NOW Times >> Winter 2007  >> Article

Regulations Undermine Title IX Equal Education and Sports Access

By Jan Erickson, Director of Government Relations

Young women with NOW round

NOW staff photo

The Michigan anti-affirmative action ballot measure battle followed on the heels of another protracted fight in the spring by Michigan NOW activists to stop legislation to permit single sex public schools. Proponents had conducted extensive local organizing in Detroit, where they managed to convince parents with children in under-funded inner-city schools, and even school district officials, that single sex education would be a cheap and easy fix for their problems. Even Michigan Gov. Jennifer Granholm (D) was supportive, and the measure passed.

Then in late October, the Department of Education (DOE) released final regulations to "increase flexibility" of Title IX (the 1972 federal law guaranteeing equal education rights for women and girls), by allowing sex-segregated schools and classrooms nationwide. The new regulation permits publicly-funded schools to establish voluntary single sex classes or schools if they offer "substantially equal" co-educational programs. Those regulations could allow districts to escape constitutional challenges to their sex-segregated schools.

The 1972 language of Title IX stipulates that schools may separate the sexes when doing so serves a narrow and justifiable purpose, such as physical education classes or contact sports, or for the purpose of remediation. The new rule greatly expands the justification for single sex education by stating that the objectives "must be related to the achievement of an important objective such as improvement the educational achievement of students, providing diverse education opportunities, or meeting the particular identified needs of students."

Critics, including NOW leaders, say that under that definition schools could cite practically any reason in establishing sex segregated education, and would not be required to demonstrate actual increased achievement (studies indicate that they would not likely be able to do so anyway, since single-sex education has not been shown to increase academic achievement).

The single sex rule change is the result of a long term campaign by conservative forces that was bolstered with an amendment to the 2002 No Child Left Behind Act. A change in federal regulations was then proposed, followed by a comment period when NOW and many other groups asserted that such a change would be unconstitutional. DOE then carried out a review of the education research literature was in 2005 ("Single-Sex Versus Coeducational Schooling: A Systematic Review") which provided no justification for changing Title IX single sex regulations. But they were changed anyway.

Single sex education promoters have found some success by tapping into parents' unhappiness with poorly performing schools. Promoters propagandize about the alleged benefits of single sex education, playing up supposed learning differences between males and females and the "distractions" that are caused in the classroom when boys, girls and hormones mix. They draw parallels with elite, private single-sex schools — leading parents to believe that there is a magic to sex segregation. But the real magic is what educators have known: smaller classrooms, excellent teachers, and increased resources.

An additional weakening of the Title IX guarantee of equal education occurred when the DOE issued a "clarification" letter to colleges and universities, instructing them that an "interest survey" conducted by email would be sufficient to determine the interest level of female students in various athletic programs, in order to comply with Title IX. This means that many colleges will no longer be required to fund and equip women's athletic programs at previous levels. NOW and women's sports organizations opposed this as an inadequate and biased effort, intended to erode education institutions' Title IX responsibilities for providing equal access to athletic programs. NOW is determined to continue fighting the issue, and looks forward to a future administration that will change the regulation promptly.

"The Bush administration's goal is to bench our daughters," said NOW President Kim Gandy, "and we won't take it without a fight."

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